Public
employees have an interest in keeping their salaries secret, partly because
disclosing them could lead to identity theft, the First District Court of
Appeal has ruled.

Div.
One on Friday upheld a preliminary injunction issued by San Mateo Superior Court
Judge Rosemary Pfeiffer in litigation involving several Bay Area newspapers and
municipalities and unions representing the municipal employees. Pfeiffer
ordered the cities to release position titles and salary amounts requested by
the newspapers, but not the names of individual employees.

Christina
Bellantoni, a reporter for the Daily News, which operates several Bay Area
newspapers, sent requests under the California Public Records Act to the cities
in February. Bellantoni asked for a list of “names, titles and W2 wages” for
all city employees for 2002.

Teamsters
Local 856 and other unions representing the workers sought injunctive relief,
claiming release of the information would invade the employees’ privacy.

Interests
Balanced

Writing
for the appellate court, Presiding Justice James J. Marchiano said Pfeiffer’s
order properly balanced the competing interests at the pretrial stage of the
litigation.

“In
this case, the court accepted a stipulation that employees’ salary details are
kept confidential in personnel files,” Marchiano wrote. “This unchallenged fact
supports the trial court’s recognition that a privacy interest was at stake and
that the expectation of privacy was reasonable under the circumstances.”

The
presiding justice said the privacy claims advanced by the unions needed to be
“carefully analyzed” since “disclosure of the financial information sought by
the Daily News in this case means the information is public and available to
anyone, regardless of motive, including telemarketers, creditors and identity
thieves.”

He
noted that most of the cases the newspapers relied on, including Braun v. City of Taft (1984) 154
Cal.App.3d 332, were decided “before the spread of identity theft, and the
current widespread and serious concern for the privacy of an individual’s
financial data.”

In
Braun, the court upheld a
determination that a city administrator’s salary classification was public
record, and commented: “Few persons would find interest in [the
administrator’s] social security and credit union numbers, or birth date.”

The
presiding justice, saying the +Braun+
court’s comment had been “inexplicably” included in its opinion, observed:

“Identity
thieves today would have a great deal of interest in an individual’s social
security number and other identifying financial data.”

‘Speculative
Possibilities’

Marchiano
conceded that the newspapers had outlined circumstances under which the salary
information could be used to explore issues of public concern, but explained
that those “speculative possibilities” did not establish a “relationship
between indiscriminate, mass disclosure of all employee names with salaries and
the public’s right to know how public funds are spent.”

He
declared:

“The
name of a particular city employee does not tend to shed light on the city’s
performance of its duties. The release of salaries, broken down by position,
title, base salary, overtime and bonus compensation serves the public purposes
that appellants urge at this stage of the proceedings. Appellants are not
precluded from presenting additional evidence of why the names of employees are
needed for their purposes.”

Marchiano
said any release of information regarding police officers would also have to
comply with the provisions of Penal Code Sec. 832.7, which limits disclosure of
information from peace officer personnel files. Notice to the officers and a
“Pitchess” hearing under Evidence Code Secs. 1043 and 1046 would have to take
place before that information could be released, the justice said.

The
jurist noted that the court was only upholding Pfeiffer’s ruling on the unions’
request for interim relief, not making a determination regarding the ultimate
outcome of the litigation.

“We are not now deciding the merits of the question of whether the Cities must
release salary information in a form that identifies the salaries paid to
specific individual employees,” Marchiano wrote. “Resolution of that issue
involves a balancing test that will benefit from a complete presentation of
evidence and argument.”

Justices
William D. Stein and Sandra L. Margulies concurred.

Thomas
R. Burke of Davis Wright Tremaine, who co-authored an amicus brief on behalf of
the California Newspaper Publishers Association and other media groups,
predicted that a “substantial number of compelling reasons” for making the
salary information public will be established when the case goes to trial.

“I
don’t think it’s over with yet,” the attorney said, adding that he believes the
appellate court gave “a lot more credit than they needed to to the idea of
identity theft.”

Burke
also questioned the standing of the employee unions to contest the release of
the information, pointing to a footnote in which Marchiano conceded that under Filarsky v. Superior Court (2002) 28
Cal.4th 419 there is “no express authority for a third party to bring an action
to preclude a public agency from disclosing documents under the CPRA.”

The
footnote explains that the newspapers waived any objection on that basis,
adding that the appellate panel was expressing “no opinion on the propriety of
the third party action.”

Burke
called that comment a “signal” to media litigants that the standing issue
probably should have been raised.

“The
union basically did an end run around the public records act,” he declared.